AFFIRMED; Opinion Filed July 28, 2014.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-13-00656-CV

WENDY JEANELLE HENNIG, Appellant

V.

MICHAEL “MIRO” DIDYK, INDIVIDUALLY AND AS INDEPENDENT 

ADMINISTRATOR OF THE ESTATE OF MATTHEW MICHAEL DIDYK, 

DECEASED, Appellee

On Appeal from the 401st Judicial District Court

Collin County, Texas

Trial Court Cause No. 401-51025-07

OPINION

Before Justices Lang, Myers, and Brown 

Opinion by Justice Myers

Appellant Wendy Jeanelle Hennig appeals from a judgment entered in favor of appellee 

Michael “Miro” Didyk, individually and as independent administrator of the estate of Matthew 

Michael Didyk, deceased, appellant’s former husband, following a nonjury trial. In three issues, 

appellant argues the trial court erred by (1) failing to give effect to the decedent’s designation of 

appellant as the beneficiary of contested life insurance proceeds; (2) failing to give res judicata 

effect to a decision from a federal district court; and (3) finding and concluding appellee was 

entitled to the life insurance proceeds. We affirm.

BACKGROUND AND PROCEDURAL HISTORY

Appellee Michael “Miro” Didyk is the independent administrator of the estate of his son, 

Matthew Michael Didyk, deceased, and appellant Wendy Jeanelle Hennig is the decedent’s 
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former wife. At the time of his death in September 2010, the decedent was insured by a life 

insurance policy issued as part of an employee benefit plan. It is undisputed that the decedent 

was insured by the life insurance policy as a result of his employment, and that the life insurance 

policy was part of the decedent’s employee welfare benefit plan subject to the Employee 

Retirement Income Security Act of 1974 (ERISA). 

In April 2005, the decedent had designated his then-wife, appellant, as the beneficiary of 

the policy. On May 15, 2007, decedent and appellant were divorced by an agreed final decree of 

divorce, in cause number 401–51025–07, styled In the Matter of the Marriage of Matthew 

Michael Didyk and Wendy Jeanelle Didyk, in the 401st Judicial District Court of Collin County, 

Texas. The divorce decree provided in part:

Division of Marital Estate

A. Property to MATTHEW MICHAEL DIDYK

IT IS ORDERED AND DECREED that MATTHEW MICHAEL DIDYK is 

awarded as his sole and separate property all right, title, and interest, and claim in 

and to the property listed in Schedule “A”, attached to this Decree and 

incorporated herein as if fully set out, and WENDY JEANELLE DIDYK is

divested of all right, title, and interest, and claim in and to that property.

B. Property to WENDY JEANELLE DIDYK

IT IS ORDERED AND DECREED that WENDY JEANELLE DIDYK is 

awarded as her sole and separate property all right, title, interest, and claim in and 

to the property listed in Schedule “B”, attached to this Decree and incorporated 

herein as if fully set out, and MATTHEW MICHAEL DIDYK is divested of all 

right, title, interest, and claim in and to that property.

Schedule “A” of the decree, entitled “Property Awarded to Matthew Michael Didyk,” awarded

the decedent, in part:

5. All sums, whether matured or unmatured, accrued or unaccrued, vested or 

otherwise, together with all increases thereof, the proceeds therefrom, and any 

other rights related to any profit-sharing plan, retirement plan, Keogh plan, 

pension plan, employee stock option plan, 401(k) plan, employee savings plan, 

accrued unpaid bonuses, disability plan, or other benefits existing by reason of the 

husband’s past, present, or future employment.
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. . . .

9. All policies of life insurance (including cash values) insuring the husband’s 

life.

Schedule “B,” entitled “Property Awarded to Wendy Jeanelle Didyk,” similarly provided, in 

part:

7. All sums, whether matured or unmatured, accrued or unaccrued, vested or 

otherwise, together with all increases thereof, the proceeds therefrom, and any 

other rights related to any profit-sharing plan, retirement plan, Keogh plan, 

pension plan, employee stock option plan, 40l(k) plan, employee savings plan, 

accrued unpaid bonuses, disability plan, or other benefits existing by reason of the 

wife’s past, present, or future employment.

. . . . 

11. All policies of life insurance (including cash values) insuring the wife’s life.

The decedent died on September 25, 2010. The beneficiary designation in the life 

insurance policy, however, was never changed by the decedent, and appellant remained the 

designated beneficiary in the policy at the time of the decedent’s death. 

In December 2010, a probate court in Collin County appointed appellee “Miro” Didyk, 

the decedent’s father, to serve as the independent administrator of the decedent’s estate. The 

probate court subsequently signed a “Judgment Declaring Heirship” that found the lawful heirs 

of the decedent’s estate were his parents––“Miro” Didyk and Virginia Didyk, his wife––in equal 

shares. Both appellee, as the independent administrator of the decedent’s estate, and appellant, 

as the then-designated beneficiary, made claim to the proceeds of the life insurance policy. 

In June 2011, the life insurance company filed an interpleader action in federal court and 

tendered into the registry of the United States District Court for the Eastern District of Texas, 

Sherman Division, the disputed life insurance proceeds payable under the policy and the accrued 

interest––a total of $377,897.26. Based on the agreement of both appellant and appellee, the 

insurance company was dismissed from the action.

Appellant moved for summary judgment in the federal court action, arguing the ERISA 
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statute required the proceeds of the life insurance policy be paid to her. The federal court issued 

a memorandum opinion on September 27, 2012, that granted appellant’s motion for summary 

judgment and ordered the life insurance proceeds distributed to appellant. Although the court 

rejected appellee’s arguments, it concluded, in part:

Nonetheless, the Court agrees with Didyk that, as to any claims regarding the 

enforcement of the Agreed Final Decree of Divorce under Chapter 9 of the Texas 

Family Code and for the suit for breach of contract against Wendy Jeanelle 

Hennig, the proper forum is in the State Court Action pending in the 40lst District

Court of Collin County, Texas. See Kennedy, 555 U.S. at 300, 129 S.Ct. at 875 

(“Nor do we express any view as to whether the Estate could have brought an 

action in state or federal court against Liv to obtain the benefits after they were 

distributed.”). The Court, therefore, does not make any finding here that Hennig 

is ultimately entitled to the insurance benefits. That is a matter for the state court 

to determine. The Court’s role here is limited––to distribute the funds as the 

ERISA plans requires. Whether Hennig is obligated to turn those funds over (and 

the consequences for any failure to do so) falls under the divorce Decree which is 

not a matter over which this Court has jurisdiction.

Unam Life Ins. Co. of America v. Wendy Jeanelle Hennig and Michael Didyk, as Independent 

Administrator of the Estate of Matthew Michael Didyk, No. 4:11CV366, slip op. at 7 (E.D. Tex. 

September 27, 2012). In a final judgment signed on October 24, 2012, the federal court ordered 

the clerk of the court to pay the interpleaded funds to appellant. 

Appellee filed this lawsuit in the same Collin County district court that signed the decree 

of divorce between appellant and decedent. Appellee’s original petition, filed on January 12, 

2012, initially sought recovery of the life insurance proceeds pursuant to Chapter 9 of the Texas 

Family Code and breach of contract. After the federal court issued its memorandum opinion, the 

petition was amended (on November 19, 2012) to add that, under Texas Family Code § 9.301,

the designation of appellant as beneficiary was not effective as a matter of law. In response, 

appellant amended her answer to plead, in addition to a general denial, the affirmative defenses 

of ERISA preemption of § 9.301 and res judicata based on the federal court’s memorandum 

opinion. 
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A non-jury trial was held in the 401st district court on December 6, 2012. Staci Fletcher, 

the decedent’s administrative assistant for eleven years, was employed by the same company as 

the decedent and had the same life insurance coverage. She testified1 that sometime in late 

October or early November of 2008, she assisted the decedent in logging into the computer 

system to change his insurance benefits. After accessing the decedent’s insurance benefits, they 

learned appellant was still his designated beneficiary. Fletcher testified that the decedent “was 

very angry and frustrated with himself” when he made this discovery, and “couldn’t believe that 

he never remembered to change it before.” They called the decedent’s father, appellee, to obtain 

his social security number for the purpose of effecting a beneficiary change. Fletcher testified 

that she was sitting beside the decedent and watched him as he logged into the computer system 

concerning his benefits and made the change to remove appellant as the beneficiary and replace 

her with appellee. Fletcher testified that the decedent “just completed the information on the 

computer system,” and that she believed the beneficiary information had been changed. 

After the decedent’s death, however, Fletcher learned the actions he took to change the 

beneficiary designation were ineffective. Fletcher testified that an employee was required to 

download a form, sign it, and send it to the insurance company. Unless the employee followed 

those steps, the beneficiary change was incomplete and ineffective.

2

 There was no doubt in 

 1 In addition to Fletcher, the decedent’s father, mother, best friend, appellant, and a friend of both the decedent and appellant, also testified 

at the hearing.

2 The decedent’s life insurance policy provided in part:

How Do You Designate Or Change A Beneficiary? (Beneficiary Designation)

At the time you become insured, you should name a beneficiary on your enrollment form for your death benefits under 

your life insurance. You may change your beneficiary at any time by filing a form approved by Unum with your 

Employer. The new beneficiary designation will be effective as of the date you sign that form. However, if we have taken 

any action or made any payment before your Employer receives that form, that change will not go into effect.

It is important that you name a beneficiary and keep your designation current. If more than one beneficiary is named and 

you do not designate their order or share of payments, the beneficiaries will share equally. The share of a beneficiary who 

dies before you, or the share of a beneficiary who is disqualified, will pass to any surviving beneficiaries in the order you 

designated.

If you do not name a beneficiary, or if all named beneficiaries do not survive you, or if your named beneficiary is 
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Fletcher’s mind that the decedent thought he changed the beneficiary designation in his policy. 

On February 25, 2013, the trial court signed the final judgment and made findings of fact 

and conclusions of law that the court dictated into the record. Subsequently, on April 12, 2013, 

the trial court signed further supplemental findings of fact and conclusions of law in addition to 

those dictated into the record. The trial court ordered the life insurance proceeds, which had 

been deposited into the registry of the court, awarded to appellee, plus interest.

3

 

DISCUSSION

Standards of Review

The findings of fact entered in this case “are of the same force and dignity as a jury’s 

answers to jury questions.” Lambright v. Trahan, 322 S.W.3d 424, 430 (Tex. App.––Texarkana 

2010, pet. denied) (citing Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991)). 

We review the findings of fact by the same standards that are applied in reviewing the legal or 

factual sufficiency of the evidence supporting a jury’s answer to a jury question. Id. (citing Ortiz 

v. Jones, 917 S.W.2d 770, 772 (Tex. 1996)). 

We review de novo a trial court’s conclusions of law to determine if the trial court drew 

the correct legal conclusions from the facts. See BMC Software Belg., N.V. v. Marchand, 83 

S.W.3d 789, 794 (Tex. 2002). We are not bound by the trial court’s legal conclusions, but the 

conclusions of law will be upheld on appeal if the judgment can be sustained on any legal theory 

supported by the evidence; incorrect conclusions of law will not require reversal if the 

controlling findings of fact will support a correct legal theory. Id.; see also May v. Buck, 375 

S.W.3d 568, 573 (Tex. App.––Dallas 2012, no pet.).

 disqualified, your death benefit will be paid to your estate.

3 The trial court’s judgment awarded the proceeds from the life insurance policy plus “interest earned during the deposit of those funds, by 

virtue of the cause of action alleged in this matter.”
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I. ERISA Preemption

In her first issue, appellant contends the trial court erred as a matter of law by failing to 

give effect to the decedent’s designation of appellant as the beneficiary of the life insurance 

proceeds, and by negating the designation pursuant to 9.301 of the Texas Family Code, because 

section 9.301 is preempted by the Employee Retirement Income Security Act (ERISA). See 29 

U.S.C. §§ 1001–1461. Appellant attacks the trial court’s conclusions of law numbers 1, 2, 3, and 

6, which read as follows: 

1. That regarding any claims for enforcement of the Agreed Final Decree of 

Divorce under Chapter 9 of the Texas Family Code and for the suit for breach of 

contract against Wendy Jeanelle Hennig, the proper forum is in the 401st District 

Court of Collin County, Texas. This is the exact same conclusion that the United 

States District Court for the Eastern District of Texas reached in its Memorandum 

Opinion and Order on September 27, 2012.

2. That any federal law issue regarding the life insurance proceeds on the 

decedent’s life, was addressed and resolved by the United States District Court for 

the Eastern District of Texas, in the related cause of action, specifically when it 

dismissed the plan administrator UNUM Life Insurance, with a recovery of its 

costs, and then distributed the life insurance proceeds to Wendy Jeanelle Hennig 

in a manner consistent with the provisions of the Employee Retirement Income 

Security Act of 1974 (ERISA).

3. That after the discharge of the plan administrator and the distribution of the 

funds to Wendy Jeanelle Hennig, that the provisions of ERISA do not preempt the 

application of Texas law as to the remaining issues before this Court.

. . . . 

6. That pursuant to the express provisions of § 9.301 of the Texas Family Code 

the designation of Hennig as a beneficiary of the life insurance policy in question, 

originally made on or about April 25, 2005 is not effective as a matter of law, 

following the parties divorce on May 15, 2007.

Section 9.301 of the Texas Family Code, captioned “Pre-Decree Designation of ExSpouse as Beneficiary of Life Insurance,” provides that if an insured’s spouse is designated as a 

life insurance beneficiary but the couple later divorces or their marriage is annulled, the earlier 

designation of the former spouse as a policy beneficiary is not effective unless (1) “the decree 
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designates the insured’s former spouse as the beneficiary”; (2) “the insured redesignates the 

former spouse as a beneficiary after rendition of the decree”; or (3) “the former spouse is 

designated to receive the proceeds in trust for, on behalf of, or for the benefit of a child or a 

dependent of either former spouse.” See TEX. FAM. CODE ANN. § 9.301(a). If a designation is 

not effective under subsection (a), the policy proceeds are payable to the named alternative 

beneficiary, or if there is none, the proceeds are payable to the insured’s estate. Id. § 9.301(b). 

Section (c) is a “safe harbor” provision that limits an insurer’s liability for payment of the 

proceeds. It provides: 

An insurer who pays the proceeds of a life insurance policy issued by the insurer 

to the beneficiary under a designation that is not effective under Subsection (a) is 

liable for payment of the proceeds to the person or estate provided by Subsection 

(b) only if: (1) before payment of the proceeds to the designated beneficiary, the 

insurer receives written notice at the home office of the insurer from an interested 

person that the designation is not effective under Subsection (a); and (2) the 

insurer has not interpleaded the proceeds into the registry of a court of competent 

jurisdiction in accordance with the Texas Rules of Civil Procedure. 

Id. § 9.301(c).

The trial court in this case concluded the beneficiary designation in the decedent’s life 

insurance policy was ineffective as a matter of law under 9.301, but the court also concluded 

appellant breached the contract contained in the agreed final decree of divorce, and that appellee 

was entitled to recover the life insurance proceeds because of the breach. As discussed in part 

two of this opinion, appellant agreed to waive all rights to the decedent’s life insurance policy in 

the divorce decree. This is an issue of contract law. See Allen v. Allen, 717 S.W.2d 311, 313 

(Tex. 1986) (we interpret marital property agreements in divorce decrees under law of contracts). 

Therefore, we need not resolve the parties’ dispute over whether, as applied, section 9.301 is 

preempted by ERISA because the divorce decree specifically provided that appellant lost all

rights to the life insurance policy. See Olmstead v. Napoli, 383 S.W.3d 650, 654–55 (Tex. App.

––Houston [14th Dist.] 2012, no pet.) (declining to determine whether section 9.302, which 
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voids certain spousal beneficiary designations upon divorce, divested former wife of her rights as 

designated beneficiary of former husband’s IRA because, in the parties’ divorce decree, former 

wife agreed to forfeit all rights to the IRA she may have had). Because the ERISA plan 

administrator has distributed the proceeds to appellant, the named beneficiary, as required by 

ERISA, the preemption question we must address is whether ERISA preempts a post-distribution 

action against appellant. 

ERISA requires that “[e]very employee benefit plan shall be established and maintained 

pursuant to a written instrument” that “specif[ies] the basis on which payments are made to and 

from the plan.” 29 U.S.C. § 1102(a)(1), (b)(4). ERISA directs the plan administrator to 

discharge his duties “in accordance with the documents and instruments governing the plan.” Id. 

§ 1104(a)(1)(D). In Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 555 

U.S. 285, 299–304 (2009), the Supreme Court held that an ERISA plan administrator must 

distribute benefits to the beneficiary named in the plan, regardless of any state-law waiver 

purporting to divest that beneficiary of his right to the benefits. Kennedy, however, explicitly left 

open the question of whether the decedent’s estate could sue the designated beneficiary of an 

ERISA-governed policy after the funds were distributed. See id. at 299 n.10 (“Nor do we 

express any view as to whether the Estate could have brought an action in state or federal court 

against [the plan beneficiary] to obtain the benefits after they were distributed.”). 

In Kennedy, the Supreme Court emphasized three important ERISA objectives: (1) 

“simple administration,” (2) “avoid[ing] double liability [for plan administrators],” and (3) 

“ensur[ing] that beneficiaries get what’s coming quickly, without the folderol essential under 

less-certain rules.” Id. at 301 (some alterations in original) (citation omitted); Andochick v. Byrd, 

709 F.3d 296, 300 (4th Cir. 2013). As the Fourth Circuit has stated, allowing post-distribution 

lawsuits to enforce state-law waivers does not interfere with ERISA’s objectives:
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Allowing post-distribution suits to enforce state-law waivers does nothing to 

interfere with any of these objectives. For in situations like that at issue here, 

Kennedy merely dictates that the plan administrator distribute plan benefits to the 

named beneficiary. This ensures simple administration regardless of whether 

post-distribution suits are permitted, because the plan administrator would have 

no role in any post-distribution proceedings. For the same reason, postdistribution suits do not expose the plan administrator to double liability—only 

the named beneficiary has any claim against the plan administrator.

Andochick, 709 F.3d at 299. Additionally, “the goal of ensuring that beneficiaries ‘get what’s 

coming quickly’ refers to the expeditious distribution of funds from plan administrators, not to 

some sort of rule providing continued shelter from contractual liability to beneficiaries who have 

already received plan proceeds.” Estate of Kensinger v. URL Pharma, Inc., 674 F.3d 131, 136

(3d Cir. 2012) (emphasis in original). Allowing post-distribution suits against plan beneficiaries 

based on pre-distribution waivers does not prevent those beneficiaries from “get[ting] what’s 

coming quickly.” Smalley v. Smalley, 399 S.W.3d 631, 639 (Tex. App.––Houston [14th Dist.] 

2013, no pet.) (citing Andochick, 709 F.3d at 300; Estate of Kensinger, 674 F.3d at 136). 

Indeed, a number of state and federal courts have concluded that ERISA does not 

preempt post-distribution lawsuits against the beneficiaries of ERISA-governed policies. See, 

e.g., Andochick, 709 F.3d at 299–301 (ERISA does not preempt post-distribution suits against 

ERISA beneficiaries alleging waiver); Central States, Se. & Sw. Areas Pension Fund v. Howell, 

227 F.3d 672, 679 (6th Cir. 2000) (ERISA did not preempt imposition of a constructive trust 

after benefits had been distributed in accordance with plan documents); Flesner v. Flesner, 845 

F. Supp. 2d 791, 799–802 (S.D. Tex. 2012) (ERISA did not preempt breach of contract claim 

brought by executor of estate against beneficiary of ERISA-governed life insurance policies 

because claim was based on beneficiary’s breach of divorce decree and proceeds of the policies 

had been distributed); Partlow v. Person, 798 F. Supp. 2d 878, 885 (E.D. Mich. 2011) (“The law 

recognizes a distinction between a plan administrator’s obligation to pay over benefits to a 

named plan beneficiary and that beneficiary’s entitlement to keep those funds thereafter.”);
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Appleton v. Alcorn, 728 S.E.2d 549, 552 (Ga. 2012) (“In this case, since the proceeds of the 

ERISA-covered plans were paid out to appellant and were no longer in the control of the plan 

administrator,” the trial court erred when it dismissed breach of contract claim brought by 

father’s estate against his second wife arguing she contractually waived her right to retain the 

proceeds of deceased father’s employer-provided 401(k) plan and life insurance policy.); Sweebe 

v. Sweebe, 712 N.W.2d 708, 712 (Mich. 2006) (“[W]hile a plan administrator must pay benefits 

to the named beneficiary as required by ERISA, this does not mean that the named beneficiary 

cannot waive her interest in retaining these proceeds. Once the proceeds are distributed, the 

consensual terms of a prior contractual agreement may prevent the named beneficiary from 

retaining those proceeds.”); see also Smalley, 399 S.W.3d at 638 (“[W]e conclude that permitting 

post-distribution suits accords with the objectives discussed in Kennedy.”).

To support her preemption claim, appellant cites Egelhoff v. Egelhoff ex rel. Breiner, 532 

U.S. 141 (2001), Boggs v. Boggs, 520 U.S. 833 (1997), and Barnett v. Barnett, 67 S.W.3d 107 

(Tex. 2001). All three cases, however, pre-date Kennedy, which expressly left open the question 

of whether an insured’s estate could bring suit against the designated beneficiary of an ERISAgoverned policy after the funds were distributed by the plan administrator. Moreover, careful

examination of all these cases shows that appellant’s reliance on them is misplaced. 

In Boggs, the Court held that ERISA preempted a Louisiana community property law that 

would have allowed a plan participant’s first wife to transfer by will her interest in the 

participant’s undistributed retirement benefits. 520 U.S. at 833. Boggs, however, involved a 

very different situation from the one we face here. Operation of the community property law at 

issue in Boggs would have resulted in the diversion of plan benefits without the consent of the 

plan participant. See id. at 852 (noting that, unless ERISA preempted the state statute, “retirees 

could find their retirement benefits reduced by substantial sums because they have been diverted 
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to testamentary recipients”). Additionally, as other courts have noted, the interest at issue in 

Boggs was an interest in undistributed pension plan benefits, while in the present case the 

question is whether appellee can pursue a post-distribution action against appellant. See Estate 

of Kensinger, 674 F.3d at 138 (distinguishing Boggs). 

In Barnett, the Supreme Court of Texas held that ERISA preempted a claim by one 

seeking to impose a constructive trust on insurance policy proceeds to remedy a constructive 

fraud on the community. See 67 S.W.3d at 112–22. The Barnett case, however, did not involve

a divorce decree or an alleged waiver by a former spouse in a divorce decree. See id. at 109–

110. Barnett cited cases dealing with such waivers, but the Texas Supreme Court subsequently 

concluded ERISA did not preempt claims under federal common law to enforce a waiver by an 

ex-spouse in a divorce decree of her interest in ERISA plan benefits. Keen v. Weaver, 121 

S.W.3d 721, 724–29 (Tex. 2003), abrogated by Kennedy, 555 U.S. at 299–304. Kennedy

abrogated Keen to the extent it allowed such waiver claims to be asserted against the ERISA plan 

administrator. Smalley, 399 S.W.3d at 639. Yet, Keen and Kennedy at least show that 

appellant’s reliance on Barnett in this instance is dubious, if not misplaced. See Kennedy, 555 

U.S. at 299–304; Keen, 121 S.W.3d at 726; Smalley, 399 S.W.3d at 639. 

Egelhoff is no more helpful to appellant. In Egelhoff, the Supreme Court held that 

ERISA preempted the application of a state statute that automatically revoked, upon divorce, any 

designation of a spouse as a beneficiary of an ERISA benefit plan. 532 U.S. at 146–50. The 

Court based its holding on the fact that the state statute required administrators to “pay benefits 

to the beneficiaries chosen by state law, rather than to those identified in the plan documents,” id. 

at 147, which creates a direct conflict with ERISA’s requirements that plans be administered, and 

benefits be paid, in accordance with plan documents. Id. at 147, 150. 

In this case, unlike Egelhoff, appellee does not argue that the plan administrator should 
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have paid the contested funds to anyone other than the named beneficiary; rather, he argues that 

the named beneficiary, having received those funds, was not entitled to keep them because she 

contractually waived that right in the agreed final decree of divorce. Post-distribution suits of the 

kind brought here do not require ERISA plan administrators to pay life insurance benefits to 

anyone other than the named beneficiary; they simply seek to enforce the consensual terms of a 

prior contractual agreement to prevent the named beneficiary from retaining the proceeds. 

Allowing post-distribution suits to enforce state-law waivers does not interfere with ERISA’s 

objectives. See Andochick, 709 F.3d at 301. Accordingly, we conclude that this case does not 

implicate ERISA’s preemption provisions, but, instead, is simply a contractual dispute between 

two parties. We now turn to that question. We overrule appellant’s first issue.

II. The Agreed Final Decree of Divorce

In her third issue, appellant contends the trial court erred as a matter of law by finding 

and concluding appellant breached a contract, and in awarding the disputed life insurance 

proceeds to appellee. Appellant attacks the trial court’s finding of fact number 18, which reads

as follows:

18. That based on the evidence presented and the applicable law, Wendy Jeanelle 

Hennig breached the contract with Matthew Michael Didyk, Deceased as 

contained in the Agreed Final Decree of Divorce of May 15, 2007, by claiming 

the benefits of the life insurance policy in question.

Appellant also challenges the following conclusions of law: 

7. That based on the evidence presented and the applicable law, Wendy Jeanelle 

Hennig breached the contract with Matthew Michael Didyk, Deceased as 

contained in the Agreed Final Decree of Divorce of May 15, 2007 and Petitioner, 

Miro Didyk, as the executor and primary beneficiary of the estate of Matthew 

Michael Didyk, Deceased, is entitled to recovery [of] the life insurance proceeds 

as a result of that breach.

8. That Petitioner, Miro Didyk, as the executor and primary beneficiary of the 

estate of Matthew Michael Didyk, Deceased is entitled to Judgment based on his 

action for enforcement of the Agreed Final Decree of Divorce under the 

provisions of Chapter 9 of the Texas Family Code and for breach of the contract 
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entered into between Matthew Michael Didyk and Wendy Jeanelle Hennig as 

contained in the Agreed Final Decree of Divorce of May 15, 2007.

Appellant makes two related arguments here: (1) she surrendered her rights to the life 

insurance policy in the divorce decree but not the proceeds of the policy; and (2) the language 

used in schedule “A,” paragraph 5 of the divorce decree does not control the disposition of the 

policy because (a) life insurance proceeds are not specifically mentioned in paragraph 5; (b) the 

parties expressed their agreement regarding life insurance policies in paragraph 9 of schedule 

“A”; (c) the specific language in paragraph 9 prevails over the general language in paragraph 5; 

and (d) the items listed in paragraph 5 are not similar in nature to life insurance policies, which 

were addressed in paragraph 9. 

An agreed property division, although incorporated into a final divorce decree, is treated 

as a contract and is controlled by the rules of construction applicable to ordinary contracts. 

Allen, 717 S.W.2d at 313; In re R.F.G., 282 S.W.3d 722, 725 (Tex. App.––Dallas 2009, no pet.). 

Our primary concern in interpreting a contract is to ascertain the true intent of the parties. Italian 

Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011); In re 

R.F.G., 282 S.W.3d at 725. We construe the decree as a whole to harmonize and give effect to 

the entire decree. Shanks v. Treadway, 110 S.W.3d 444, 447 (Tex. 2003); Toler v. Sanders, 371 

S.W.3d 477, 480 (Tex. App.––Houston [1st Dist.] 2012, no pet.). If, read as a whole, the divorce 

decree’s terms are unambiguous, we must give effect to the order in light of the literal language 

used. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); In re C.P.Y., 364 S.W.3d 411, 413 

(Tex. App.––Dallas 2012, no pet.). A contract is ambiguous if its meaning is uncertain or it is 

reasonably susceptible to more than one interpretation. Coker, 650 S.W.2d at 393; see also 

Milner v. Milner, 361 S.W.3d 615, 619 (Tex. 2012); In re R.F.G., 282 S.W.3d at 725. Whether a

divorce decree is ambiguous is a question of law we review de novo. Coker, 650 S.W.2d at 394; 

see also Shanks, 110 S.W.3d at 447.
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Beginning with appellant’s argument that she gave up her rights to the life insurance 

policy but not the proceeds, appellant cites Gillespie v. Moore, 635 S.W.2d 927, 928 (Tex. App.

––Amarillo 1982, writ ref’d n.r.e.), and the cases cited therein for the proposition that a divorcing 

“spouse who conveys the ownership interest in a policy does not necessarily lose the right to 

receive the policy proceeds as the designated beneficiary.” Id. (citing Pitts v. Ashcraft, 586 

S.W.2d 685, 696 (Tex. Civ. App.––Corpus Christi 1979, writ ref’d n.r.e.); Partin v. de Cordova, 

464 S.W.2d 956, 956–57 (Tex. Civ. App.––Eastland 1971, writ ref’d)). In Gillespie, a former 

wife sued the insurance company of her deceased former husband, claiming she was the 

beneficiary of his life insurance policy. 635 S.W.2d at 927. The property settlement agreement 

in the divorce decree provided that the former husband “shall have and hold as his separate 

property,” and that the former wife “releases and transfers unto the [former husband] any and all 

interest and equities which she may have in and to such life insurance policies, or the proceeds 

thereof, and agrees that she will in no event ever claim any interest in any of such policies or the 

proceeds thereof.” Id. at 928. Prior to his death, the former husband did not remove his former 

wife as the designated beneficiary of his life insurance policy. Id. The court of appeals held the 

former wife was not entitled to the proceeds of the life insurance policy. Id. It concluded that 

“[a] spouse who conveys the ownership interest in a policy does not necessarily lose the right to 

receive the policy proceeds as the designated beneficiary,” but “[t]he latter right can be lost . . . if 

it is clear from the agreement that the spouse also intended to surrender any claim to the 

proceeds as the designated beneficiary.” Id. Because the former wife specifically agreed that 

she would in no event claim an interest in the policy or its proceeds, the settlement agreement 

unambiguously showed that she surrendered both ownership and beneficiary rights. Id. 

In Spiegel v. KLRU Endowment Fund, 228 S.W.3d 237 (Tex. App.––Austin 2007, pet. 

denied), the Austin court discussed Pitts and Partin but declined to follow them, choosing 
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instead to follow a decision from this Court, McDonald v. McDonald, 632 S.W.2d 636 (Tex.

App.––Dallas 1982, writ ref’d n.r.e.). In McDonald, the divorce decree between an insured and 

his former wife expressly awarded “as [insured’s] sole and separate property, specific items, 

including, ‘any and all insurance, pensions, retirement benefits, and other benefits arising out of 

[insured’s] employment.’” McDonald, 632 S.W.2d at 637. The insured died twenty-five days 

after the divorce in an automobile accident. Id. At the time of his death, the insured had not 

changed his former wife’s designation as the beneficiary on two life insurance policies. Id. at 

637–38. We noted that the two life insurance policies were policies available to the insured “by 

reason of his employment.” Id. at 638. We thus concluded that “the effect of the divorce 

judgment was to divest [the former wife] of her then existing rights in the future proceeds of the 

two policies in question,” and that the divorce decree terminated the former wife’s “right to the

proceeds of the two policies” where she was the named beneficiary. Id. at 638–39. The Spiegel

court thought our approach in McDonald was “better because it incorporates the presumption 

that people who are divorcing intend to revoke beneficiary designations in favor of their soon-tobe ex-spouses in the absence of explicit language to the contrary,” and that this “presumption 

comports with common sense and has been mandated by the legislature in the vast majority of 

cases.” Spiegel, 228 S.W.3d at 245 (citing TEX. FAM. CODE ANN. §§ 9.301, 9.302; Jernigan v. 

Scott, 518 S.W.2d 278, 284 (Tex. Civ. App.––San Antonio 1974, writ ref’d n.r.e.)). We are, of 

course, bound by our prior decisions. See Owen v. Jim Allee Imports, Inc., 380 S.W.3d 276, 284 

(Tex. App.––Dallas 2012, no pet.); Cleveland v. Live Oak State Bank, No. 05–11–00665–CR, 

2013 WL 1803733, at *3 (Tex. App. ––Dallas 2013, no pet.) (mem. op.). 

The decree in this case resembles the decree in McDonald. However, it actually goes 

further than the decree in McDonald because it provided that the decedent was “awarded as his 

sole and separate property all right, title, interest, and claim in and to the property listed in 
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Schedule ‘A,’” and appellant was “divested of all right, title, interest, and claim in and to that 

property.” The property listed in schedule “A” included, in paragraph 5, “all sums,” matured or 

unmatured, accrued or unaccrued, vested or otherwise, and all increases and proceeds, and “any 

other rights related to any profit-sharing plan, retirement plan, Keogh plan, pension plan, 

employee stock option plan, 401(k) plan, employee savings plan, accrued unpaid bonuses, 

disability plan, or other benefits existing by reason of the husband’s past, present, or future 

employment,” as well as, in paragraph 9, “[a]ll policies of life insurance (including cash values) 

insuring the husband’s life.” We conclude that this language shows it was the parties’ intent that 

appellant surrendered not only her rights regarding the life insurance policy, but also any claim 

to future proceeds she might have had as the designated beneficiary of the policy. See 

McDonald, 632 S.W.2d at 639. 

We reach this conclusion notwithstanding appellant’s assertion that the language in 

schedule “A,” paragraph 5 of the divorce decree is “inapplicable” to this dispute. Appellant 

partly relies on the doctrine of ejusdem generis, arguing the “specific” language in paragraph 9 

regarding life insurance policies prevails over the “general” language in the preceding paragraph 

5. Ejusdem generis is a rule of contract construction which provides that, if words of a specific 

meaning are followed by general words, the general words are interpreted to mean only the class 

or category framed by the specific words. See Stanford v. Butler, 181 S.W.2d 269, 272 (Tex.

1944); Hussong v. Schwan’s Sales Enterprises, Inc., 896 S.W.2d 320, 325 (Tex. App.––Houston 

[1st Dist.] 1995, no writ). The doctrine of ejusdem generis applies, however, only when the 

contract has been found to be ambiguous. See Hussong, 896 S.W.2d at 325; Corpus Christi v. 

Bayfront Assoc., 814 S.W.2d 98, 104 (Tex. App.—Corpus Christi 1991, writ denied). It does not 

apply when, as in this case, the parties’ intent is apparent from the agreement. See Hussong, 896 

S.W.2d at 325. Moreover, ejusdem generis applies when words of a specific and particular 
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meaning are followed by general words and an ambiguity exists, but we have found no authority 

applying it when, as appellant is attempting to argue here, general words (in paragraph 5) are 

followed by specific words (in paragraph 9). See Corpus Christi, 814 S.W.2d at 104; Jones v. St. 

Paul Ins. Co., 725 S.W.2d 291, 292 (Tex. App.––Corpus Christi 1986, no writ). 

Appellant also argues that paragraph 5 is inapplicable because the parties expressed their 

agreement regarding life insurance policies in paragraph 9, life insurance policies are not 

specifically mentioned in paragraph 5, and the items listed in paragraph 5 are not similar in 

nature to life insurance policies. The problem with these arguments, however, is that the 

language in paragraph 9 cannot be read in isolation. Rather, we must construe the decree as a 

whole to harmonize and give effect to the entire decree. Shanks, 110 S.W.3d at 447; Coker, 650 

S.W.2d at 393. 

The divorce decree in this case shows that the parties intended to sever their financial 

relationship. Schedules “A” and “B,” of the divorce decree, in addition to listing a number of 

work-related benefits and investments that are each spouse’s separate property, both include the 

language “or other benefits existing by reason of the [husband’s or wife’s] past, present, or 

future employment” (emphasis added). It is undisputed that the decedent’s life insurance policy 

was a benefit obtained through his employment, and that appellant made claim to the benefits of 

the policy. Furthermore, the benefits of the life insurance policy necessarily “exist[ ] by reason 

of the husband’s past, present, or future employment.” We also note that the court’s findings of 

fact 15, 16, and 17 state that the underlying contract contained in the divorce decree was 

negotiated by the parties while represented by independent counsel, there was no evidence the 

contract was made by mistake, duress, or fraud, and that it was a valid contract with 

consideration given and received by each party, and therefore “fully enforceable.” These three 

findings are unchallenged on appeal. See Wells Fargo Bank N.W., N.A. v. RPK Capital XVI, 
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L.L.C., 360 S.W.3d 691, 698 (Tex. App.––Dallas 2012, no pet.) (“Unchallenged findings of fact 

are binding on the appellate court, unless the contrary is established as a matter of law or there is 

no evidence to support the finding.”).

We conclude that, given the unambiguous language in the divorce decree, appellant

waived her ownership interest regarding the decedent’s life insurance policy and any claim to 

future proceeds. See McDonald, 632 S.W.2d at 638–39; see also Olmstead, 383 S.W.3d at 654–

55 (spouse who conveys the ownership interest in a policy does not necessarily lose right to 

receive policy proceeds as designated beneficiary but may lose that right if it is clear from 

marital property agreement that spouse also intended to surrender any claim to proceeds as 

designated beneficiary); Spiegel, 228 S.W.3d at 245 (allocation of property in mediated divorce 

settlement agreement between husband and wife revoked husband’s beneficiary status as to nonprobate property awarded to the wife, such that he had no beneficiary claim to the property 

following wife’s death; agreement contained language indicating parties’ intent to immediately 

and completely sever their financial relationship and included a broad release by each party of 

any future claims or demands against the other party); Sanderlin v. Sanderlin, 929 S.W.2d 121, 

122–23 (Tex. App.––San Antonio 1996, writ denied) (any rights the former wife may have had 

in retirement funds and proceeds were extinguished by marital property agreement in divorce 

decree; agreement was “all-encompassing” and “intention of the parties with regard to [former 

husband’s] teacher retirement is clear;” former wife “is not to receive any of it.”); Jernigan, 518 

S.W.2d at 284 (“The most reasonable intention which can be ascribed to parties contemplating 

separation and desirous of adjusting questions relating to property rights is an intention to make 

an arrangement relating to the future as well as the present and past, rather than an intention 

limited to existing conditions with the expectation that, in the future, the parties would 

periodically come together for the purpose of agreement relating to property thereafter 
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acquired.”). Thus, the trial court did not err by concluding appellant breached the divorce decree 

and that appellee was entitled to recovery of the life insurance proceeds. We overrule appellant’s 

third issue.

III. Res Judicata

In her second issue, appellant argues that the trial court erred as a matter of law by failing 

to give res judicata effect to the federal court’s decision awarding appellant the life insurance 

proceeds. See Unam, No. 4:11CV366, slip op. at 7. The case cited by appellant, San Antonio 

Independent School District v. McKinney, 936 S.W.2d 279, 281 (Tex. 1996), discusses the 

elements used in determining whether to apply res judicata where there has been a prior federal 

court judgment. However, the opinion also states that even if all the other requirements are met, 

res judicata does not apply if the federal court lacked jurisdiction over the omitted state law 

claims, or possessed jurisdiction but would clearly have declined to exercise that jurisdiction as a 

matter of discretion. McKinney, 936 S.W.3d at 281. As we pointed out earlier, the federal court 

specifically declined to exercise jurisdiction over appellant’s state law claims, stating that the 

proper forum for enforcement of the divorce decree was the then-pending action in the Collin 

County district court; that it was not making any findings appellant was ultimately entitled to the 

insurance proceeds, which was a matter for the state court to decide; and that the federal court’s 

role was limited to distributing the funds as ERISA required. See Unam, No. 4:11CV366, slip 

op. at 7. Because the federal court unambiguously declined to exercise jurisdiction over 

appellant’s state laws claims, the trial court correctly concluded the doctrine of res judicata does 

not apply in this instance. We overrule appellant’s second issue. 

We affirm the trial court’s judgment.

130656F.P05

____________________________

LANA MYERS

JUSTICE
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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

WENDY JEANELLE HENNIG, Appellant

No. 05-13-00656-CV V.

MICHAEL “MIRO” DIDYK, 

INDIVIDUALLY AND AS 

INDEPENDENT ADMINISTRATOR OF 

THE ESTATE OF MATTHEW MICHAEL 

DIDYK, DECEASED, Appellee

On Appeal from the 401st Judicial District 

Court, Collin County, Texas

Trial Court Cause No. 401-51025-07.

Opinion delivered by Justice Myers. 

Justices Lang and Brown participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

It is ORDERED that appellee MICHAEL “MIRO” DIDYK, INDIVIDUALLY AND AS 

INDEPENDENT ADMINISTRATOR OF THE ESTATE OF MATTHEW MICHAEL DIDYK, 

DECEASED recover his costs of this appeal from appellant WENDY JEANELLE HENNIG.

Judgment entered this 28th day of July, 2014.